Fire Safety: Secretary of Labor vs. Atlantic Batter Co., OSHRC Docket No. 90-1747, Dec., 5, 1995

Date: Sep 01, 1996

Fire protection requires a constant effort to ensure that employees are trained, equipment is operable, and preventive steps are taken to avoid catastrophes.  Providing fire extinguishers for the use of employees in fighting incipient fires is covered by the Occupational Safety and Health Administration (OSHA) regulations at 29 C.F.R. 1910.157.  This standard requires that the employees be adequately trained in their use, the extinguisher locations be designated and that the extinguishers be kept in their designated place except during use.  An employer may be exempt from all or some of the requirements of this standard if an emergency action and fire prevention plan meeting the requirements of ' 1910.38 is implemented and the extinguishers are not intended for employee use.  However, many employers expect employees to use extinguishers, especially in locations where hazardous substances are used.  Accordingly, making sure they are available and that employees are adequately trained in their use is critical.

In this case, OSHA inspected Atlantic Battery Company (Atlantic) and cited the company for violations of paragraph ' 1910.157(c)(4), which requires that

The employer shall assure that portable fire extinguishers are maintained in a fully charged condition and kept in their designated places at all times except during use;

and paragraph (g)(1), which provides that

Where the employer has provided portable fire extinguishers for employee use in the workplace, the employer shall also provide an educational program to familiarize employees with the general principles of fire extinguisher use and the hazards involved with incipient stage fire fighting. 

OSHA's industrial hygienist photographed a door frame marked with a sign designating the presence of a fire extinguisher, which was missing from its hook.  She also testified that she did not see one in the general area.  The company president testified that the employee who would use it kept it on the floor near his work station, because "it was quite a large extinguisher. . . [and] it made sense to have [it] very close at hand." 

The Administrative Law Judge (ALJ) rejected the employer's argument, noting that other employees might have occasion to require its use, and that an extinguisher not in its designated place is not readily accessible to them.  The Occupational Safety and Health Review Commission (OSHRC) upheld the judges decision, stating that it "lacked to power to question the Secretary's decision to require fire extinguishers at certain locations."  The company's defense, the Commission said, misses the point.  The standard, it said, serves to "protect those employees in the workplace who are not aware that a fire extinguisher has been moved from its designated place [emphasis in original]."  The violation was affirmed. 

The second citation alleged a violation of paragraph (g)(1) in that employees using certain flammable products, such as paints and thinners, were not trained in the general principles of firefighting.  The testimony of the OSHA inspectors was that two of four employees interviewed reported no fire extinguisher training, while one of the other two had received it several years before.  The company president again testified that employees had been shown how to use the extinguisher "several times . . . over the years" how to use one, and that it was "almost common knowledge" how to use a carbon dioxide extinguisher, the only type available in the factory.  The president described the training as "[l]earn as you go one-on-one informal instruction or explanation." 

The Commission concluded that OSHA had sustained its burden of proof that the training of employees failed to meet the standard.  While one of the employees appeared to have training about fire extinguisher use, the others were not.  Nor had the employer met the requirement of the standard in another section which requires annual training.  In particular, the Commission was concerned that the training the employees received did not address use of fire extinguishers and specific fire hazards in that workplace regarding incipient-stage fire fighting.  Teaching the employees only how to use the extinguisher in itself would not be sufficient to satisfy the standard's requirements. 

Training includes hands-on exercises.  In ' 1910.155(c)(41), OSHA defines training "applicable to [subpart L]" (of which section 157 is a part) as the "process of making proficient through instruction and hands-on practice in the operation of equipment . . . ."  This does not mean, however, that a live fire demonstration is necessary, according to an OSHA letter written in response to a question from an employer. 

"OSHA does not require that fires actually must be started and extinguished to simulate emergency fire conditions during employee training. . . .  However, when conducted, live fire demonstrations should be conducted under qualified supervision at a facility appropriate for the purpose . . . .  As a minimum, hands on training should include the actual discharging of fire extinguishers appropriate for the type of fires expected, unracking of standpipe hoses, and test sounding of fire alarm boxes."

Nevertheless, employers should consider the circumstances in which employees are required to respond to incipient fires and provide training accordingly.  Often, the local fire department will provide the training for employees.  Providing adequate training for employees in fire protection has always been an important and often forgotten task. 

This article appeared in Compliance Magazine (September 1996) and it is reprinted with permission of Compliance Magazine. Copyright © 1996 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.